Citation Nr: 0001740
Decision Date: 01/20/00 Archive Date: 01/28/00
DOCKET NO. 97-29 412A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to service connection for acne, claimed as
due to herbicide agents used in Vietnam.
2. Entitlement to service connection for a disability
manifested by numbness of the extremities, claimed as due to
herbicide agents used in Vietnam.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
A.D. Jackson, Counsel
INTRODUCTION
The appellant had active service from November 1967 to
December 1970. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from a rating decision of
the Department of Veterans Affairs (VA) Oakland, California,
Regional Office (RO).
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal.
2. The veteran served in the Republic of Vietnam during the
Vietnam era.
3. The appellant's disability claimed as numbness of the
extremities is not recognized by the VA as causally related
to exposure to herbicide agents used in Vietnam.
4. The current numbness of the extremities is not related to
any injury or disease during the veteran's active service,
including Agent Orange exposure.
5. Chloracne was not manifested during active service or
shown to have developed to a compensable degree within 1 year
after the last date on which the veteran was exposed to
herbicides, including Agent Orange, during active service.
6. Chloracne was first diagnosed more than 28 years after
the veteran's separation from active service.
CONCLUSIONS OF LAW
1. Numbness of the extremities claimed as due to herbicide
agents used in Vietnam was not incurred in or aggravated by
wartime service and may not be presumed to have been incurred
during such service. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116
(West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999).
2. Chloracne claimed as due to herbicide agents used in
Vietnam was not incurred in or aggravated by wartime service
and may not be presumed to have been incurred during such
service. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116 (West 1991);
38 C.F.R. §§ 3.303, 3.307, 3.309 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran asserts on appeal that service connection is
warranted for chloracne and numbness of the extremities as
the claimed disorders were initially manifested during active
service or, in the alternative, was incurred as the result of
his exposure to Agent Orange while in the Republic of Vietnam
and became manifest to a compensable degree within one year
of service separation.
The three elements of a "well grounded" claim for service
connection are: (1) evidence of a current disability as
provided by a medical diagnosis; (2) evidence of incurrence
or aggravation of a disease or injury in service as provided
by either lay or medical evidence, as the situation dictates;
and, (3) a nexus, or link, between the in-service disease or
injury and the current disability as provided by competent
medical evidence. See Caluza v. Brown, 9 Vet. App. 498, 506
(1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see
also 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303
(1999).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110 (West 1991). Regulations also
provide that service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(1999).
Regulations pertaining to Agent Orange exposure, now expanded
to include all herbicides used in Vietnam, provide that if a
veteran who served on active duty in Vietnam during the
Vietnam era develops one of the diseases which is presumed to
have resulted from exposure to herbicides, the veteran are
presumed to have been exposed to Agent Orange or similar
herbicides. McCartt v. West, 12 Vet. App. 164 (1999). These
regulations also stipulate the diseases for which service
connection may be presumed due to an association with
exposure to herbicide agents. The specified diseases are
chloracne or other acneform diseases consistent with
chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's
lymphoma, acute and subacute peripheral neuropathy, PCT,
prostate cancer, respiratory cancers, and soft-tissue
sarcoma. With regard to the skin diseases, PCT, and acute
and subacute peripheral neuropathy, the regulations specify
that the disorder must have become manifest to a degree of 10
percent within one year after the last date on which the
veteran was exposed to the herbicide during active military
service for service connection to be warranted. 38 C.F.R. §§
3.307(a)(6), 3.309(e) (1999). According to 38 C.F.R. §
3.307(a)(6), the term herbicide agent means a chemical in an
herbicide used in support of the United States and allied
military operations in the Republic of Vietnam during the
Vietnam era.
It is noted that the veteran at his personal hearing held in
February 1998 reported that he underwent a VA Agent Orange
examination in 1979 or 1980. However, a Report of Contact
dated in November 1991 relates that the RO contacted the
appropriate VA medical center. It was reported that the
veteran registered for an examination in 1980, however, the
Agent Orange registry failed to show that he was actually
examined.
I. Numbness of the Extremities
In regards to numbness of the extremities, private medical
records show that beginning in June 1986, the veteran
reported a five-week history of numbness in both hands. He
reported that while playing with his daughter he developed
pain and numbness. The diagnosis was cervical spine stenosis
with progressive myelopathy. He underwent a cervical
laminectomy. Private medical records also show that in 1990,
the veteran continued to report neck pain and impaired
sensation in the extremities.
In December 1996, a private physician's report was submitted
which included a diagnosis of peripheral neuropathy of the
hands.
The veteran underwent VA examination in February 1998. The
diagnoses included cervical stenosis with myelopathy, status
post cervical laminectomy with bilateral slight muscle
weakness and some residual sensory bilateral defects in both
upper and lower extremities.
A. Presumptive Service Connection For
Numbness of the Extremities
Although the appellant argues that his exposure to Agent
Orange while in Vietnam, which is presumed for a veteran who
served in the Republic of Vietnam during the Vietnam era and
who develops one of the diseases listed in 38 C.F.R.
§ 3.309(e), resulted in the development of numbness of the
extremities, the Board notes that neither "numbness of the
extremities" nor the diagnosed cervical spinal stenosis is
among the disabilities subject to presumptive service
connection as due to Agent Orange exposure. The Secretary of
VA has formally announced that a presumption of service
connection based on herbicide exposure in Vietnam is not
warranted for certain conditions or for "any other condition
for which the Secretary has not specifically determined a
presumption of service connection is warranted." See
59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41442 (Aug. 8,
1996); 65 Fed. Reg. 59232 (Nov. 2, 1999). Accordingly, the
Board concludes that the veteran has not met his burden of
presenting a well-grounded claim for service connection for
numbness of the extremities secondary to Agent Orange
exposure.
The Board notes that the record contains a diagnosis of
peripheral neuropathy in an undated doctor's statement
submitted in December 1996. An August 1997 rating decision
denied service connection for this disability, although it
did not specifically discuss whether presumptive service
connection could be granted. For purposes of 38 C.F.R.
§ 3.309(e), "acute and subacute peripheral neuropathy" is
defined as transient peripheral neuropathy that appears
within weeks or months of exposure to an herbicide and
resolves within two years of date of onset. As such "acute
and subacute peripheral neuropathy" was not diagnosed, the
Board concludes that the RO's failure to consider presumptive
service connection on the basis of exposure to herbicides
under 38 C.F.R. §§ 3.307 and 3.309 was harmless error.
B. Direct Service Connection For
Numbness of the Extremities
Aside from the above-mentioned presumptive provisions,
service connection may be established by satisfactory proof
of direct service connection. The United States Court of
Appeals for the Federal Circuit has determined that the
Veteran's Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-542, §
5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran
from establishing service connection with proof of actual
direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir.
1994). The rationale employed in Combee also applies to
claims based on exposure to herbicides. Brock v. Brown,
10 Vet. App. 155, 160 (1998).
As noted above, the first element of Caluza requires evidence
of current disability as provided by a medical diagnosis. In
regard to the numbness of the extremities, the diagnosis of
cervical spine stenosis satisfies this requirement.
Concerning the second element, evidence of inservice injury
or disease, the veteran at his personal hearing when
questioned regarding his numbness of the extremities,
referred to an inservice incident in which he burned his
hand. It appears that he is asserting that this inservice
injury caused his current numbness. While the service
medical records do not show treatment for a burn, for the
purposes of determining a well-grounded claim, the veteran is
competent to report an inservice injury.
The third element is also met, as the doctor's statement
submitted in December 1996 characterizes the peripheral
neuropathy as secondary to burns of the hands sustained while
in Vietnam.
Nevertheless, the Board concludes that the preponderance of
the evidence is against the claim for service connection for
peripheral neuropathy. As reported in the February 1998 VA
examination report, EMG and nerve conduction studies revealed
wide spread denervation in bilateral upper limbs proximally
and distally indicative of spinal stenosis. The examiner
also expressed the opinion that the veteran's complaint of
intermittent numbness of the upper extremities was unlikely
related to the reported burns or to Agent Orange exposure.
Rather, the examiner expressed the opinion that the veteran's
complaints could have been related to early spinal stenosis
or, later, to the residuals of spinal stenosis. As this
opinion is based on the entire record and is well reasoned
and consistent with the evidence of record, the Board gives
it more weight than the opinion submitted in December 1996,
which does not include the basis for the opinion stated
therein. Accordingly, service connection for numbness of the
hands on a direct basis is denied.
II. Chloracne
The Board finds that the veteran has presented a well-
grounded claim within the meaning of 38 U.S.C.A. § 5107. See
Epps v. Gober, 126 Fed. 3d. 1464, 1468-1469 (Fed. Cir 1997);
Caluza v. Brown, 9 Vet. App. 468 (1995). In this regard, the
veteran has provided competent evidence of a current
disability, in the form of diagnoses of chloracne. Chloracne
is one of the diseases listed at 38 C.F.R. § 3.309(e), thus
the veteran is presumed to have been exposed to Agent Orange
in service. McCartt, supra. Furthermore, the statutory and
the regulatory presumption will satisfy the incurrence
element of a well-grounded claim in that the veteran has
developed a condition enumerated in 38 U.S.C. § 1116(a) and
38 C.F.R. § 3.309(e). The Board also finds that the VA has
complied with its obligation to assist him with the
development of his claims.
A. Presumptive Service Connection For
Chloracne
A review of the service record shows that the veteran was
treated for skin disorders on two different occasions in
service. A clinical entry indicates that he was treated for
penile warts in the month of May, however, the year was not
clearly marked. Additionally, in June 1970, he received
medical care for a rash under the arms. The October 1970
separation examination report did not identify any skin
abnormalities.
Private medical records relate that in May 1987, an
epidermoid cyst and two trichelemmal cysts were excised from
the scalp.
In March 1998, the veteran underwent dermatologic VA
examination. The diagnosis was persistent acne on the face,
chest and back. The examiner commented that the persistent
acneform lesions were compatible with chloracne.
While conceding the fact that the veteran has a diagnosis of
chloracne, a diagnosis standing alone is insufficient to
establish presumptive service connection for chloracne. The
regulations specify that the disorder must have become
manifest to a degree of 10 percent within one year after the
last date on which the veteran was exposed to the herbicide
during active military service for service connection to be
warranted. 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1999). The
veteran served in Vietnam from May 1968 to November 1969.
The first objective clinical documentation of chloracne is in
1998, more than 28 years after service separation. There is
no competent medical evidence that chloracne was present to a
compensable degree within a year subsequent to the veteran's
return from Vietnam.
The veteran asserts that his skin disorder, which was
manifestations of chloracne, began subsequent to service
discharge and he treated this with Clearasil. However, it
has not been shown that the veteran has the expertise to
diagnose his skin disorders. See Espiritu v. Derwinski, 2
Vet. App. 492 (1992). While the veteran engaged in combat
with the enemy, the provisions of 38 U.S.C.A. § 1154 (West
1991) do not assist in advancing the veteran's claim. See
Kessel v. West, 13 Vet. App. 9 (1999) (en banc). To the
extent that the veteran has reported exposure to Agent Orange
while in combat, the Board accepts his statements. However,
there remains an absence of competent evidence that the skin
disorders for which the veteran was treated during and
shortly after service were, in fact, chloracne or that it was
present to a compensable degree within the applicable time
period. Thus, presumptive service connection for chloracne
is not warranted
B. Direct Service Connection For
Chloracne
The evidence of record does not reflect that service
connection can be granted on a direct basis. As noted above,
the service medical records relate that the veteran was
treated for diagnosed skin conditions during service. While
the veteran received treatment for skin disorders during
service, the medical record do not establish that these
disorders were manifestations of chloracne. Additionally,
there are no medical opinions of records to support such a
theory. The veteran claims that the skin disorders that were
noted subsequent to service discharge were chloracne.
However as pointed out above, it has not been shown that the
veteran has the expertise to diagnose his skin disorders.
See Espiritu, supra. Moreover, there is no competent medical
evidence of the presence of chloracne until the reported
diagnosis in 1998, over 28 years after service discharge.
The Board finds that the none of the medical evidence of
record supports a conclusion that the veteran's chloracne was
incurred in or aggravated by his active service. As the
preponderance of the evidence is against the claim, service
connection for chloracne is denied.
ORDER
Entitlement to service connection for numbness of the
extremities claimed as due to herbicide agents used in
Vietnam is denied.
Entitlement to service connection for chloracne, claimed as
due to herbicide agents used in Vietnam is denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals